Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019 Page 1 of 14

ATTORNEY FOR APPELLANT

Adam G. Forrest

BBKCC Attorneys

Richmond, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

David E. Corey

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship 

of:

L.S. (Minor Child),

and

A.S. (Mother),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

May 21, 2019

Court of Appeals Case No.

18A-JT-2881

Appeal from the Union Circuit 

Court

The Honorable Mathew R. Cox, 

Judge

Trial Court Cause No.

81C01-1802-JT-13

Baker, Judge.
Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019 Page 2 of 14

[1] A.S. (Mother) appeals the termination of her parent-child relationship with L.S. 

(Child), arguing that the trial court erred by admitting certain evidence and that 

the evidence was insufficient. Finding no reversible error and the evidence 

sufficient, we affirm.

Facts

[2] Child was born on October 28, 2015, with drugs in her system.1 The following 

day, the Department of Child Services (DCS) filed a petition alleging Child to 

be a Child in Need of Services (CHINS). On October 30, 2015, Mother 

admitted to the allegations in the CHINS petition, including Mother’s use of 

illicit substances, Child experiencing withdrawal symptoms due to Mother’s use 

of illicit substances, and Mother’s uncertainty about the identity of Child’s 

father. At the time of the hearing, Child was in the hospital, and the juvenile 

court ordered relative placement upon Child’s release from the hospital. The 

juvenile court found Child to be a CHINS.

[3] At the December 22, 2015, dispositional hearing, the juvenile court ordered 

Mother to participate with certain services, including contacting the Family 

Case Manager (FCM) weekly; completing a parenting assessment and 

complying with any recommendations; completing a substance abuse 

assessment and complying with any recommendations; submitting to random 

 

1 At the time of Child’s birth, the identity of her father was unknown. Child’s father is not involved in this 

appeal.
Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019 Page 3 of 14

drug screens; attending all scheduled visits with Child; and completing a 

detoxification treatment program and an inpatient treatment program and 

complying with all recommendations.

Mother’s Drug Use

[4] The FCM, who was assigned to this case in August 2016, testified that during 

her involvement in this case, Mother did not have a single clean drug screen. 

On December 15, 2015, Mother tested positive for cocaine and 

benzodiazepines. On January 7, 2016, Mother admitted to recently using 

cocaine. On January 10, 2016, when Mother went to Harbor Light Center, she 

admitted that she had used cocaine that day. On March 8, 2016, Mother was 

ordered to take a drug screen; she refused and left court before a screen could be 

administered. She refused to meet with the FCM for testing and did not return 

phone calls to set up tests. 

[5] At the December 13, 2016, review hearing, there was evidence that during the 

review period, Mother had not appeared for other scheduled or random drug 

screens. During the hearing, she was ordered to take a drug test, but she failed 

to do so. Mother tested positive for cocaine on March 14 and June 13, 2017. 

On September 19, 2017, she refused to submit to a drug screen. A drug-testing 

service suspended its services due to Mother’s non-compliance. 
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Mother’s Participation with Services and Visits

[6] In October 2015, Mother was referred for detoxification services at Harbor 

Light. On January 10, 2016, Mother went there for an assessment and 

detoxification. She completed the detoxification, but left the facility on January 

19, 2016, before completing in-patient treatment. She failed to notify DCS that 

she left. At Mother’s request, she was referred to Meridian Health Services. 

She completed her substance abuse assessment there but did not comply with 

the recommended intensive outpatient treatment, attending three out of twelve 

sessions in August 2016. Meridian eventually discontinued services, partly 

because Mother missed appointments and partly because Meridian learned that 

Mother was living in Ohio, and Meridian would not offer services there. In 

June or July 2017, DCS offered Mother services through Community Mental 

Health Center (CMHC), which was closer to Mother’s location in Ohio;

Mother cancelled three scheduled appointments, and as a result, CMHC would 

not schedule additional meetings with Mother.

[7] Mother did not maintain regular contact with the FCM, making supervised 

visits with Child difficult to schedule. She visited Child in June 2016. At the 

March 14, 2017, review hearing, there was evidence that Mother had not 

contacted the FCM since the previous review hearing on December 13, 2016. 

Mother did not attend the Child and Family Team Meeting scheduled for 

March 3, 2017. A hearing took place on April 25, 2017, during which Mother’s 

visits with Child were suspended; Mother had not visited Child during the 

reporting period before this suspension of visits.
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Termination Proceedings

[8] On February 15, 2018, DCS filed a petition to terminate the parent-child 

relationship. The factfinding hearing took place on May 2 and June 5, 2018. 

At the hearing, evidence was presented that Child does not know Mother, that 

Child is bonded to her maternal aunt and other family members, and that her 

caregivers have provided her permanency and stability. The FCM testified that 

in her opinion, termination is in Child’s best interest.

[9] During the factfinding hearing, DCS offered Exhibits Sixteen and Seventeen 

into evidence. Each exhibit was an affidavit of Bridget Lemberg, the laboratory 

director of Forensic Fluids Laboratories, Inc. In the affidavits, Lemberg 

detailed the laboratory’s procedures and stated that the procedures were 

followed for Mother’s drug tests; the results of Mother’s drug tests from August 

31 and October 12, 2016, and May 3, 2017, were attached to the affidavits. 

Mother objected to the admission of these exhibits, arguing that the test results 

appeared to be unreliable and that the forensic lab technician was not there to 

testify. The State argued that the drug test results could be admitted because 

they met the requirements of the business records exception to the rule against 

hearsay. 

[10] The juvenile court stated:

. . . The Court will take the matter under advisement but will 

proceed as if they are admitted into evidence. So any subsequent 

testimony regarding drug screens will be allowed. If I determine 

that they are not admissible, then that . . . testimony will be 
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stricken from the record. If I determine they are admissible, then 

the evidence submitted, uh, for their testimony will be admitted. 

Okay?

Tr. Vol. III p. 34.

[11] On November 2, 2018, the trial court issued an order terminating the parentchild relationship. The order included the following findings of fact:

19. On or about August 31, 2016, October 12, 2016, and May 3, 

2017, Mother submitted to drug screens, and the results were 

positive for cocaine.

***

21. Mother did not complete services through Meridian, and 

around January 2017 Meridian ended services for Mother due to 

non-compliance.

***

23. DCS made a referral for services for the parents through 

CMHC around June or July 2017, but the parents did not 

complete services.

24. Mother has a history of unstable housing.

***

26. Mother and Father have not consistently visited Child.

Appealed Order p. 11. Mother now appeals.
Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019 Page 7 of 14

Discussion and Decision

I. Standard of Review

[12] Our standard of review with respect to termination of parental rights 

proceedings is well established. In considering whether termination was 

appropriate, we neither reweigh the evidence nor assess witness credibility. 

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will 

consider only the evidence and reasonable inferences that may be drawn 

therefrom in support of the judgment, giving due regard to the trial court’s 

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial 

court entered findings of fact and conclusions of law, we will not set aside the 

findings or judgment unless clearly erroneous. Id. In making that 

determination, we must consider whether the evidence clearly and convincingly 

supports the findings, and the findings clearly and convincingly support the 

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing 

evidence that the child’s emotional and physical development are threatened by 

the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children, 

839 N.E.2d 143, 148 (Ind. 2005).

[13] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate 

parental rights for a CHINS must make the following allegations:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at 

least six (6) months under a dispositional decree.
Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019 Page 8 of 14

(ii) A court has entered a finding under IC 31-34-21-5.6 

that reasonable efforts for family preservation or 

reunification are not required, including a 

description of the court’s finding, the date of the 

finding, and the manner in which the finding was 

made.

(iii) The child has been removed from the parent and 

has been under the supervision of a local office or 

probation department for at least fifteen (15) months 

of the most recent twenty-two (22) months, 

beginning with the date the child is removed from 

the home as a result of the child being alleged to be 

a child in need of services or a delinquent child;

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions 

that resulted in the child’s removal or the reasons 

for placement outside the home of the parents will 

not be remedied.

(ii) There is a reasonable probability that the 

continuation of the parent-child relationship poses a 

threat to the well-being of the child.

(iii) The child has, on two (2) separate occasions, been 

adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment 

of the child.
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DCS must prove the alleged circumstances by clear and convincing evidence. 

K.T.K., 989 N.E.2d at 1230.

II. Admission of Evidence

[14] Mother first objects to the trial court’s admission of Exhibits Sixteen and 

Seventeen into evidence, arguing that the exhibits were inadmissible hearsay. 

We will reverse the trial court’s decision regarding admission of evidence only 

when the decision is against the logic and effect of the facts and circumstances 

before the court. B.H. v. Ind. Dep’t of Child Servs., 989 N.E.2d 355, 360 (Ind. Ct. 

App. 2013). Not all trial court error is reversible. In re Termination of ParentChild Relationship of E.T., 808 N.E.2d 639, 645 (Ind. 2004). “The improper 

admission of evidence is harmless error when the judgment is supported by 

substantial independent evidence to satisfy the reviewing court that there is no 

substantial likelihood that the questioned evidence contributed to the 

judgment.” Id. 

[15] Hearsay is an out-of-court statement offered in evidence to prove the truth of 

the matter asserted. Ind. Evidence Rule 801(c). Hearsay is not admissible 

unless it falls under certain exceptions. Evid. R. 802. One such exception is 

that of records of a regularly conducted activity, which provides:

A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by--or from 

information transmitted by--someone with knowledge;
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(B) the record was kept in the course of a regularly conducted 

activity of a business, organization, occupation, or calling, 

whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness, or by a certification that 

complies with Rule 902(11) or (12) [the rule on selfauthentication] or with a statute permitting certification; and

(E) neither the source of information nor the method or 

circumstances of preparation indicate a lack of trustworthiness.

Evid. R. 803(6). 

[16] Our Supreme Court has explained:

[T]he business records exception to the hearsay rule is based on 

the fact that the circumstances of preparation assure the accuracy 

and reliability of the entries. As we have observed more recently, 

the reliability of business records stems in part from the fact that 

the organization depends on them to operate, from the sense that they 

are subject to review, audit, or internal checks, [and] from the 

precision engendered by the repetition. . . .

In essence, the basis for the business records exception is that 

reliability is assured because the maker of the record relies on the 

record in the ordinary course of business activities. The regular 

course of business must find its meaning in the inherent nature of 

the business in question and in the methods systematically 

employed for the conduct of the business as a business. Thus 

where a company does not rely upon certain records for the performance 

of its functions those records are not business records within the meaning 
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of the exception to the hearsay rule. It is not enough to qualify under 

the business records exception to show that the records are made 

regularly; rather, the court must also look to the character of the 

records and their earmarks of reliability acquired from their 

source and origin and the nature of their compilation. 

E.T., 808 N.E.2d at 642-43 (citations and internal quotation marks omitted)

(emphases added).

[17] The exhibits that contain Mother’s drug test results do not fall under the 

business records exception to the rule against hearsay. Although the affidavits 

state that the laboratory reports were maintained in the normal course of 

business activity as business records, what we consider is whether a business 

depends on those records to function. Forensic Fluids Laboratories does not 

depend on these records to operate or to conduct business. Rather, the drug test 

results were documented for the benefit of DCS. Therefore, these exhibits were 

inadmissible as hearsay and should not have been admitted over Mother’s 

timely objection. See id. at 644-45 (finding that reports of home visits and 

supervised visitations made for an Office of Family and Children did not 

qualify as business records because no organization depended on them to 

operate a business). Admission of this evidence requires expert testimony and 

the opportunity for cross-examination.

[18] The trial court erred by admitting the exhibits into evidence. Nonetheless, as 

discussed below, the trial court’s determination is supported by substantial 

evidence independent of these two exhibits that satisfy us that its determination 

stands without reliance on these two exhibits.
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III. Remedy of Conditions Resulting in Removal

[19] Mother also argues that there is not clear and convincing evidence that there is 

a reasonable probability that the conditions resulting in Child’s removal will not 

be remedied. Her argument consists of challenging several of the juvenile 

court’s findings of fact. 

Finding 19

[20] Mother first challenges Finding 19, in which the trial court found that, based on 

the drug test results that were admitted by affidavit, Mother tested positive for 

cocaine. As discussed above, the trial court erred by admitting this evidence 

and accordingly, erred by relying on it in its determination.

Findings 21 and 23

[21] Mother next challenges the trial court’s Findings 21 and 23, which stated:

21. Mother did not complete services through Meridian, and 

around January 2017 Meridian ended services for Mother due to 

non-compliance.

***

23. DCS made a referral for services for the parents through 

CMHC around June or July 2017, but the parents did not 

complete services.

Appealed Order p. 11. According to Mother, these findings of fact suggest that 

she simply ignored the referred services. She contends that, if she did not 
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complete services, it was because DCS did not offer services to her while she 

lived in Ohio. Yet while Mother lived in Indiana, she requested that services be 

provided through Meridian, and although DCS accommodated Mother’s 

request, Mother did not complete services through that service provider. The 

FCM later referred Mother to CMHC for a substance abuse assessment 

precisely because it was closer to where Mother lived; at the time of the 

factfinding hearing, Mother had still not completed the assessment. This

evidence supports the trial court’s findings of fact regarding Mother’s noncompliance with services.

Finding 24

[22] Mother next challenges the trial court’s finding that she has a history of 

unstable housing. The FCM testified that during her involvement in the case, 

Mother had not had stable housing. During these proceedings, Mother lived 

with Child’s father, but they were evicted for not paying rent; Mother lived in 

Cincinnati, apparently as part of her employment caring for the residents of the 

home; and she again lived with Child’s father in an apartment in Ohio because 

she had nowhere else to go. Mother’s argument that there is a lack of evidence 

to support this finding is a request to reweigh the evidence, which we may not 

do. The trial court did not err by making this finding.

Finding 26

[23] Mother also challenges the trial court’s finding that she has not consistently 

visited Child. While Mother attributes her lack of visitation to the trial court’s 
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order prohibiting her from visiting Child, the trial court prohibited Mother only 

because Mother had not complied with services. Moreover, during these 

proceedings, visits could not start because of Mother’s lack of contact with 

DCS, and even when they did start, Mother did not visit Child because she 

failed to contact DCS. Mother’s last visit with Child was in October 2017. 

Because Mother did not consistently visit Child, Child does not know her. The 

trial court did not err by making this finding.

[24] In sum, even excluding the improperly admitted evidence, we find that the 

juvenile court did not err by finding that DCS established by clear and 

convincing evidence that the conditions resulting in Child’s removal are not 

likely to be remedied.2

[25] The judgment of the juvenile court is affirmed.

Najam, J., and Robb, J., concur.

 

2 Mother also argues that there is insufficient evidence supporting the juvenile court’s conclusion that 

continuation of the parent-child relationship poses a threat to Child. As these statutory elements are phrased 

in the disjunctive and we have found that sufficient evidence supports the element related to remedy of the 

conditions resulting in Child’s removal, we need not and will not address this issue.